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Author: 


emington 


J 


Title: 


code  of  the  law  of 


sales 


Place: 


York 


Date: 

[191 


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UNIFORM  CODE  OF  i 

THE  IjA      OJ-   sales  i 


By  HAROLD  REM    /]^TON,  Esq. 
of  the  New  York  Bar 

Issued  by 
The  Fourth  National  Bank 
of  the  City  of  New  York 


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School  of  Business 


Uniform  Code  of 
the  Law  of  Sales 


By 

Harold  Remington,  Esq. 
of  the  New  York  Bar 


Issued  by 

The  Fourth  National  Bank 
of  the  City  of  New  York 


I 


{^■^ti^^g 


Copyright,  1911,  by 

The  Fourth  National  Bank 
of  the  City  of  New  York 


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The  Trow  Press 
New  York 


UNIFORM     COMMERCIAL     LAWS 

*  AND   UNIFORM  CODE  OF   SALES 

Jd  usiness  men  of  New  York  are 
particularly  interested  in  the 
law,  recently  taking  effect, 
adopting  for  the  State  of  New 
York  the  "  Uniform  Law  Re- 
garding Sales  of  Goods,"  which 
has  been  already  enacted  in 
identical  form  in  several  of 
the  more  important  commercial 
states  of  the  Union.  It  is  in 
line  with  the  tendency  to  make 
uniform,  throughout  the  forty- 
eight  states  of  the  Union,  the 
laws  concerning  trade  and  com- 
merce.    Thus,  in  many  of  thet 


,jmm 


■■i 


states  the  "  Uniform  Negotiable 
Instruments  Code  "  has  likewise 
been  adopted.  We  already  have 
throughout  the  United  States 
the  uniform  Bankruptcy  and 
Inter  -  State  Commerce  laws 
passed  by  Congress;  and  the 
recent  decisions  of  the  United 
States  Supreme  Court,  under 
the  Sherman  Act  relating  to 
trusts  and  under  the  "  Carmack 
Amendment"  relating  to  the 
liability  of  a  receiving  railroad 
for  losses  on  through  transpor- 
tation, have  brought  us  to  a 
realizing  sense  of  what  vital 
importance  to  business  interests 
these  uniform  laws  have  become 
under  our  complex  commercial 
system. 

One  of  the  prime  reasons,  in- 

2 


V 


' 


deed,  for  the  creation  and  estab- 
lishment of  the  United  States 
Constitution  was  precisely  the 
manifest   advantage   of  having 
uniform  laws  for  the  determina- 
tion   of    the   questions    arising 
out  of  trade  and  commerce  and 
the  giving  of  credit.     It  was 
with    this    in    view    that    the 
framers     of    the     Constitution 
placed  therein,  side  by  side,  the 
two  clauses  giving  to  the  Na- 
tional  Government   the  power, 
respectively,  to  regulate  Inter- 
State    commerce    and   to    pass 
uniform  laws  on  the  subject  of 
bankruptcy,  and  the  wisdom  of 
the  framers  of  the  Constitution 
in  so  doing  is  becoming  more 
manifest  day  by  day  as  these 
national  laws  are  being  resorted 

S 


to  for  solving  one  after  another 
our  compUcated  problems. 

However,  there  were  still  left 
certain  subjects,  of  equally 
vital  interest  to  merchants, 
manufacturers  and  other  busi- 
ness men,  which  were  not  placed 
under  the  control  of  the  Fed- 
eral Government  and  the  laws 
in  relation  to  which  can  only 
be  made  uniform  by  being 
adopted  by  the  different  Stat! 
Legislatures.  Such  are  the  sub- 
jel  of  negotiable  instnunenU. 
sales,  exemptions,  fire  insurance 
policies  and  the  like.  The  laws 
on  these  subjects,  affecting  as 
they  do  the  interests  of  all 
those  who  deal  with  persons 
outside  as  well  as  within  their 
own  states,  have  been  becoming 


! 


more  and  more  imperatively  in 
need  of  uniformity.  As  the  ex- 
tension of  the  telegraph,  tele- 
phone, railroad  and  postal  sys- 
tems have  brought  into  closer 
intercommunication  the  people 
of  distant  states  of  our  Union 
than  were  those  of  even  adja- 
cent states  a  century  ago,  it 
has  come  to  be  realized  that  we 
must  have  uniformity  in  other 
matters  relating  to  business 
dealings  than  simply  those  com- 
ing strictly  within  the  purview 
of  the  Inter-State  Commerce 
Act  and  the  Bankruptcy  Act. 
Nevertheless,  it  has  been  an  up- 
hill task  to  secure  the  adoption 
of  the  "  Uniform  Codes  "  relat- 
ing to  sales,  negotiable  instru- 
ments, etc.,  by  the  states  that 

5 


II 


I:  i| 


[ft 

If ' 


have  thus  far  accepted  them, 
and  the  business  men  of  our 
country  owe  a  debt  of  grati- 
tude to  the  Association  and 
the  Commissions  which  have 
been  the  most  active  powers  in 
bringing  about  their  adoption, 
for  their  unceasing  efforts  and 
splendid  devotion  to  the  task. 
The  adoption,  then,  by  the 
State  of  New  York,  of  the 
"  Uniform  Law  Regarding 
Sales  of  Goods "  thus  marks 
another  step  forward  in  the 
growth  of  that  uniformity  of 
commercial  law  so  essential  to 
the  business  development  of  our 
country. 


i 


I 


8 


II 


DOES  NOT  EADICALLY  CHANGE 
EXISTING  LAW  BUT  MAKES  IT 
CliEAJlEE  AND  MOBE  UNIFORM 

1  HIS  particular  law,  like  the 
other  "Uniform  Codes,"  does 
not  make  any  radical  departure 
from  the  ordinary  law.  In- 
deed, its  purpose  to  a  great 
degree  is  merely  to  "  declare  " 
what  is  the  existing  law,  as 
recognized  by  the  consensus  of 
the  best  judicial  opinion  in  the 
United  States.  To  be  sure, 
here  and  there,  slight  changes 
are  made  by  it  from  the  rules 
that  formerly  prevailed  in  the 
local  law,  yet,  in  the  main,  the 
principles    of    commercial    law 

7 


1 
m 


;i;    II 


are  left  unchanged,  its  adop- 
tion  simply  bringing  our  law 
into  uniformity  of  wording 
with  the  laws  of  the  other 
states,  so  that  henceforth  the 
decisions  of  our  state  can  be 
relied  upon  to  express  the 
rights  of  the  parties  with  re- 
gard to  transactions  in  other 
states  and  vice  versa. 


I 


1 


p 


8 


ni 

ONE      IMPORTANT       CHANGE      IN 

NEW     YORK     LAW SALES     OF 

GOODS     NOT     YET      MANUFAC- 
TURED,   ETC. 

Though  the  "Uniform  Law 
Regarding  Sales  of  Goods " 
makes  but  little  change  in  the 
laws  of  New  York,  yet  in  one 
respect,  at  least,  it  does  make  a 
most  important  change.  Here- 
tofore, under  the  law  of  New 
York,  a  sale  of  goods  not  yet 
in  existence  nor  owned  by  the 
seller  but  to  be  manufactured 
or  procured  elsewhere  by  him, 
has  not  been  within  the  pro- 
tection of  the  "  Statute  of 
Frauds,"  the  Statute  of  Frauds 

9 


li",* 


I 


requiring  that  a  sale  or  con- 
tract of  sale,  of  goods  amount- 
ing to  $50  or  more  in  value,  in 
order  to  be  enforceable  in  the 
courts,  must  either  be  evidenced 
by  some  memorandum  in  writ- 
ing, duly  signed,  or  else  by  a 
part  payment  of  the  price  or 
part  delivery  of  the  goods,  or 
by  the  acceptance  and  receipt 
of  something  in  "  earnest.'' 


: 


10 


jy 

GOODS  NOT  YET  MANUFACTUEED, 
NOW    WITHIN    STATUTE 

HowEVEE,  since  the  adoption 
of  the  Uniform  Code,  sales 
must  now  be  so  evidenced  "  not- 
withstanding that  the  goods 
may  be  intended  to  be  delivered 
at  some  future  time  or  may  not 
at  the  time  of  such  contract  or 
sale  be  actually  made,  procured, 
or  provided,  or  fit,  or  ready  for 
delivery,  or  some  act  may  be 
requisite  for  the  making  or 
completing  thereof,  or  render- 
ing the  same  fit  for  delivery  " ; 
the  only  exception  being  that 
"  if  the  goods  are  to  be  manu- 
factured by  the  seller  specially 

11 


I 


for  the  buyer,  and  axe  not  suit- 
able for  sale  to  others  in  the 
ordinary  course  of  the  seller's 
business/'  then  the  requirement 
of  a  written  memorandum,  part 
payment  or  part  delivery,  will 
not  apply.  From  this  time  on, 
then,  merchants  and  manufac- 
turers, and  persons  buying  from 
them,  cannot  enforce  contracts 
for  the  sale  or  purchase  of 
goods  to  be  manufactured,  or 
to  be  procured  of  others,  un- 
less either  a  memorandum  of 
the  contract  be  in  writing, 
signed  by  the  other  party  or 
his  agent,  or  unless  part  of  the 
goods  have  been  "  accepted " 
and  "  actually  received,"  or  un- 
less part  payment  has  been 
made  upon  the  purchase  price. 

1% 


I 


ESSENTIAI.S    OF    "  WRITTEN 


MEMOEANDUM 


55 


It  will  be  well  then  for  mer- 
chants to  bear  in  mind  some  of 
the  essentials  of  this  written 
"memorandum."  The  written 
memorandum  need  not  be  made 
on  a  single  piece  of  paper,  but 
may  consist  of  a  series  of  let- 
ters, although  the  letters  should 
either  each  be  signed  by  the 
party  to  be  charged  therewith 
or  the  signed  ones  should  refer 
to  the  others  sufficiently  to 
make  the  chain  complete,  link- 
ing the  different  letters  into 
one  "  written  memorandum." 
The     memorandum     must     be 

13 


III 


signed,  but  it  need  not  be 
signed  in  any  prescribed  place, 
a  signature  anywhere  in  the 
memorandum  being  sufficient, 
although  it  must  be  a  signa- 
turCj  that  is  to  say,  a  name 
written  for  the  purpose  of  a 
signature.  The  memorandum 
must,  also,  somewhere  along 
the  line,  describe  or  name  the 
parties,  the  buyer  and  seller, 
also  the  goods  and  the  quanti- 
ties of  them,  the  price,  the 
terms  of  credit  (where  credit  is 
extended),  the  time  and  place 
of  delivery,  if  any  had  been 
agreed  upon,  also  all  other  spe- 
cial terms  that  are  material  to 
the  agreement.  It  is  well  for 
the  merchant  and  manufac- 
turer,   especially    where    he    is 


f 


selling  goods  that  are  not  yet 
manufactured  or  procured  by 
himself,  to  bear  in  mind  these 
essential  points  of  the  "  written 
memorandum." 


? 


(, 


15 


yj 

GOOBS   FOE   SPECIAL   USE   NOT 
WITHIN    STATUTE 

'Where  the   goods   manufac- 
tured   are,    however,    specially 
adapted  to  the  buyer's  own  use, 
and  are  not  salable  upon  the 
general  market,  nor  adaptable 
to  sale  on  the  general  market, 
then   no   written   memorandum 
need  be  made,  as,  for  example, 
where  envelopes  are  sold  printed 
with  the  name  and  address  of 
the  buyer,   or  where   a   tailor 
makes  a  suit  of  clothes  for  a 
particular  person,  according  to 
that     person's     measure,     even 
though  the  garment  might  in  a 
certain   sense   be   salable    as   a 
"second    hand"    garment    on 
the  "general  market," 

16 


VII 

new  yoek  swings  into  line 

This  change  in  New  York  law, 
requiring  a  written  memoran- 
dum, or  part  delivery  or  part 
payment,  in  cases  where  goods 
are  not  manufactured  or  ob- 
tained, simply  swings  New  York 
law  into  line  with  the  law  in 
the  great  majority  of  the  other 
states. 


W 


VIII 

INTERNATIONAL    UNIFORMITY 
THE    ULTIMATE    GOAL 

It  IS  interesting  to  note,  too, 
that  the  wording  of  the  "  Uni- 
form Law  Regarding  Sales  of 
Goods  "  thus  in  process  of  adop- 
tion by  the  different  states 
of  the  UnitM  States,  is  ahnost 
identical  in  wording  with  the 
English  law,  from  whence  it 
was  derived;  and  the  probabili- 
ties are  that,  some  time  in  the 
future,  the  law  as  to  sales  of 
goods  will  be  absolutely  iden- 
tical throughout  not  only  the 
United  States  but  also  England 
and  her  colonies  and  dependen- 
cies,  thus  looking  towards   an 


international  uniformity  In  the 
laws  relating  to  sales  of  goods, 
as  in  relation  to  negotiable  in- 
struments and  other  commercial 
matters. 


19 


IX 


it 


SALES    "by    sample,"    SALES 
"  BY    DESCKIPTION  " 

Othee  parts  of  this  "Uniform 
Code"  are  taken  up  with  other 
interesting  matters.      Thus,  in 
carefully  chosen  language,  the 
Code  sets   forth  what   warran- 
ties are  "  implied  "  in  sales  "  by 
sample  "  and  in  sales  "  by  de- 
scription."    It  sets   forth  also 
the  rights  of  the  parties  where 
a  sale  is   evidenced  or  accom- 
panied by  a  negotiable  instru- 
ment,  and   where  that   instru- 
ment is  negotiated,  etc. 


20 


..zv 


"  NECESSARIES,"  SALES  SUFFI- 
CIENT TO  BIND  INFANTS, 
ETC. 

1  HE  Code  defines  what  are 
"  necessaries  "  for  which  an  in- 
fant or  a  drunken  person  or 
one  lacking  in  mental  capacity 
may  be  bound,  declaring  that 
"  necessaries  ...  mean  goods 
suitable  to  the  condition  in  life 
of  such  infant  or  other  person, 
and  to  his  actual  requirements 
at  the  time  of  delivery." 


21 


I' 


iM 


t^M 


i 


k  ! 


XI 

SALES  OP  UNDIVIDED  SHARES 
AND  WHEEE  GOODS  AEE  DE- 
STROYED 

1  HE  rights  of  the  parties  as 
to  sales  of  undivided  shares,  or 
shares  held  in  common,  are  also 
carefully  defined,  as  well  as  the 
rights  of  the  parties  where 
goods  sold  or  contracted  to  be 
sold  have  been  destroyed. 


I 


k 


f 


fl 


XII 


"  IMPLIED    WARRANTIES  " 


What  are  and  what  are  not 
"  implied  "  warranties  are  like- 
wise defined  in  the  Code,  as,  for 
example,  implied  warranties  of 
title  or  of  quality,  and  implied 
warranties  in  cases  where  goods 
are  sold  by  description  or  by 
sample,  the  seller  being,  by 
an  "  implied  warranty,"  bound 
to  make  good  a  fault  though 
no  warranty  nor  representation 
was  by  him  expressly  given. 

As  to  implied  warranties  of 
quality,  the  Code  says  that 
"  there  is  no  implied  warranty 
or  condition  as  to  the  quality 
or   fitness    for   any   particular 

23 


I  ^ 


ff , 


'  ¥  J 


I' 


purpose  of  goods  supplied  un- 
der a  contract  to  sell  or  a  sale, 
except  as  follows,  to  wit: 
•  "1.  Where  the  buyer  .  .  • 
makes  known  to  the  seller  the 
particular  purpose  for  which 
the  goods  are  required,  and  it 
appears  that  the  buyer  relies 
on  the  seller's  skill  or  judg- 
ment  .  .  .  there  is  an  implied 
warranty  that  the  goods  shall 
be  reasonably  fit  for  such  pur- 
pose; 

"2.  Where  the  goods  are 
bought  by  description  from  a 
seller  who  deals  in  goods  of 
that  description  .  .  .  there  is 
an  impHed  warranty  that  the 
goods  shall  be  of  merchantable 
quality; 

"  S.  If  the  buyer  has  exam- 

jC4 


I 


ined  the  goods,  there  is  no  im- 
plied warranty  as  regards  dam- 
ages which  such  examination 
ought  to  have  revealed; 

"  4.  In  the  case  of  a  con- 
tract to  sell  or  a  sale  of  a  speci- 
fied article  under  its  patent  or 
other  trade  name,  there  is  no 
implied  warranty  as  to  its  fit- 
ness for  any  particular  pur- 
pose; 

"  6.  An  implied  warranty  or 
condition  as  to  quality  or  fit- 
ness for  a  particular  purpose 
may  be  annexed  by  the  usage 
of  trade,  or  by  custom. 

"  6.  An  express  warranty  or 
condition  does  not  negative  a 
warranty  or  condition  implied 
unless  inconsistent  therewith." 


25 


WHEN   TITLE    PASSES    TO    GOODS 

SOLD 

Then  the  Code  takes  up  the 
questions  relating  to  the  pass- 
ing of  title  to  the  goods  sold, 
laying  down  five  rules  for  as- 
certaining the  mutual  intent  of 
the  parties  with  regard  thereto, 
the  mutual  intent  of  the  par- 
ties, of  course,  being  the  con- 
trolling element  in  all  cases. 
These  rules  are  as  follows: 

"  Rule  1. — ^Where  there  is 
an  unconditional  contract  to 
sell  specific  goods,  in  a  deliver- 
able state,  the  property  in  the 
goods  passes  to  the  buyer  when 

26 


the  contract  is  made  and  it  is 
immaterial  whether  the  time  of 
payment,  or  the  time  of  deliv- 
ery, or  both,  be  postponed. 

"  Rule  2.— Where  there  is  a 
contract  to  sell  specific  goods 
and  the  seller  is  bound  to  do 
something  to  the  goods,  for  the 
purpose  of  putting  them  into  a 
deliverable  state,  the  property 
does  not  pass  until  such  thing 
be  done. 

"Rule  3.  — 1.  When  the 
goods  are  delivered  to  the 
buyer  '  on  sale  or  return,'  or 
on  other  terms  indicating  an 
intention  to  make  a  present 
sale,  but  to  give  the  buyer  an 
option  to  return  the  goods  in- 
stead  of  paying  the  price,  the 
property  passes   to  the  buyer 

27 


I 


on  delivery,  but  he  may  revest 
the  property  in  the  seller  by 
returning  or  tendering  the  goods 
within  the  time  fixed  in  the  con- 
tract, or,  if  no  time  has  been 
fixed,  within  a  reasonable  time. 

"  2.  When  goods  are  deliv- 
ered to  the  buyer  on  approval 
or  on  trial  or  on  satisfaction, 
or  other  similar  terms,  the 
property  therein  passes  to  the 
buyer — 

"  (a)  When  he  signifies  his 
approval  or  acceptance  to  the 
seller  or  does  any  other  act 
adopting  the  transaction; 

"  (6)  If  he  does  not  signify 
his  approval  or  acceptance  to 
the  seller,  but  retains  the  goods 
without  giving  notice  of  rejec- 
tion, then  if  a  time  has  been 

28 


i\ 


fixed  for  the  return  of  the 
goods,  on  the  expiration  of 
such  time,  and,  if  no  time  has 
been  fixed,  on  the  expiration  of 
a  reasonable  time.  What  is  a 
reasonable  time  is  a  question  of 
fact. 

"  Rule  4. — 1.  Where  there 
is  a  contract  to  sell  unascer- 
tained or  future  goods  by  de- 
scription, and  goods  of  that 
description  and  in  a  deliverable 
state  are  unconditionally  ap- 
propriated to  the  contract, 
either  by  the  seller  with  the 
assent  of  the  buyer,  or  by  the 
buyer  with  the  assent  of  the 
seller,  the  property  in  the  goods 
thereupon  passes  to  the  buyer. 
Such  assent  may  be  expressed 
or  implied,  and  may  be  given 


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either  before  or  after  the  ap- 
propriation is  made. 

"  2.  Where,  in  pursuance  of 
a  contract  to  sell,  the  seller 
delivers  the  goods  to  the  buyer, 
or  to  a  carrier  or  other  bailed 
(whether  named  by  the  buyer 
or  not)  for  the  purpose  of 
transmission  to  or  holding  for 
the  buyer,  he  is  presumed  to 
have  unconditionally  appropri- 
ated the  goods  to  the  contract, 
except  in  the  cases  provided 
for  in  the  next  rule  and  in  sec- 
tion one  hundred  and  one. 
This  presumption  is  applicable, 
although  by  the  terms  of  the 
contract  the  buyer  is  to  pay 
the  price  before  receiving  de- 
livery^ of  tl>e  good.,  a„f  the 
goods    ire    marked    with    the 


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words  *  collect  on  delivery '  or 
their  equivalents. 

"  Rule  6. — If  the  contract 
to  sell  requires  the  seller  to 
deliver  the  goods  to  the  buyer, 
or  at  a  particular  place,  or  to 
pay  the  freight  or  cost  of 
transportation  to  the  buyer,  or 
to  a  particular  place,  the  prop- 
erty does  not  pass  until  the 
goods  have  been  delivered  to 
the  buyer  or  reached  the  place 
agreed  upon." 


81 


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■■Mryp  I  ■■ ■■  y 


BESERVATIOK        OF        TITI.E        BY 


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SELLEE,    AND         STOPPAGE    IN 
TRANSITU  " 


The  Code  takes  up  the  ques- 
tions that  arise  where  the  seller 
has  reserved  the  right  of  pos- 
session or  the  right  of  property 
to  goods  shipped,  as  well  as  the 
remedies  of  an  unpaid  seller,  by 
way  of  lien,  or  by  way  of 
"  stoppage  in  transitu." 


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XV 

the    statute    in    reality    a 
-  succinct   treatise   on  the 
iZaw  op  sales 

1  HIS  "  Uniform  Code,"  Indeed, 
in  its  thirty  pages,  in  reality 
amounts  to  a  treatise — ^a  trea- 
tise on  the  law  of  sales— log- 
ically and  clearly  written,  con- 
cise  and  brief.  It  is  rather 
unusual  to  speak  of  a  statute 
being  written  in  an  interesting 
manner,  yet  this  "Uniform 
Code "  on  the  "  Law  of  Sales 
of  Goods  "  is  deserving  of  com- 
mendation for  its  clearness  of 
Uterary  style  and  its  definite- 
ness  of  expression.  It  is  really 
quite  "  readable "  even  to  one 

33 


accustomed  to  the  dissipations 
of  the  newspaper  habit.  Were 
it  not  that  there  is  a  certain 
element  of  danger  in  any  lay- 
man's attempt  to  understand  a 
law  treatise,  it  would  not  be  a 
bad  idea  for  the  business  man 
— and  especially  for  the  mer- 
chant or  manufacturer — to  pos- 
sess himself  of  this  "Uniform 
Code."  He  would  come  to 
know  more  of  the  world  of  sales 
in  the  midst  of  which  he  lives 
and  moves  and  has  his  profit. 


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Uniform  code  of  law  of  sales* 


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